FILED

United States Court of Appeals

Tenth Circuit

August 12, 2009

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT

Clerk of Court

NAOMI A. STINSON, as a private

attorney, ex rel, the United States of
America, and as next friend of Glenn
Horace Stinson,
Plaintiff-Appellant,
v.
ALLISON MAYNARD, an individual;
ANGELA MARTIN, an individual;
BILL O-BRIEN, an individual;
BRINDA WHITE, an individual;
BRYAN SLABOTSKY, an individual;
CHARLES S. ROGERS, an individual;
CHARLIE PRICE, an individual;
CHRISTY BAKER, an individual;
CLAIRE V. EAGAN, an individual;
CLAUDIA CONNER, an individual;
DAN WEITMAN, an individual;
DAVID KINNEY, an individual;
DAVID L. RUSSELL, an individual;
DEBRA SCHWARTZ, an individual;
DIANE L. SLAYTON, an individual;
DON BROWN, an individual; DON
SELF, an individual; DOROTHY
BROWN, an individual; DOUGLAS L.
JACKSON, an individual; E. EDD
PRITCHETT, an individual;
EDWARD CLYDE KIRK, an
individual; ELIZABETH RYAN, an
individual; ELIZABETH SCOTT, an
individual; ELLEN PHILLIPS, an
individual; FRANK H. SEAY, an
individual; GAY ABSTON TUDOR,
an individual; GLEN D.
HAMMONDS, an individual; GRANT

No. 08-6238
(D.C. No. 5:07-CV-00387-WFD)
(W.D. Okla.)

MOAK, an individual; GREGORY K.

FRIZZELL, an individual; GREGORY
T. METCALFE, an individual;
GRETCHEN HARRIS, an individual;
H. DALE COOK, an individual;
HEATH ROBINSON, an individual;
JAMES BARWICK, an individual;
JAMES H. PAYNE, an individual;
JANE F. WHEELER, an individual;
JANIS W. PRESLAR, an individual;
JAY SCHNIEDERJAN, an individual;
JENNIFER B. MILLER, an individual;
JENNIFER DICKSON, an individual;
JENNIFER STRICKLAND, an
individual; JOANN STEVENSON, an
individual; JOE HEATON, an
individual; JOELLYN A.
MCCORMICK, an individual; JOHN
CRITTENDEN, an individual; JOHN
DOE number one, an individual;
JOHN DOE number two, an
individual; JULIE BAYS, an
individual; KAREN DIXON, an
individual; KARL HAWKINS, an
individual; KATHY BASS, an
individual; KEELEY L. HARRIS, an
individual; KELLY HUNTER
BURCH, an individual; KEVIN
MCCLURE, an individual;
KIMBERLY WHITE, an individual;
KINDY JONES, an individual; LEE R.
WEST, an individual; LINDA K.
SOPER, an individual; LISA
MOLINSKY, an individual; LYNN C.
ROGERS, an individual; MARC S.
PATE, an individual; MARIANNE
SMITH HARDCASTLE, an
individual; MARTHA KULMACZ, an
individual; MARY ANN ROBERTS,
an individual; NEAL BRYAN, an

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individual; NEAL LEADER, an

individual; PHILLIP L. STAMBECK,
an individual; PRESTON DRAPER, an
individual; RALPH G. THOMPSON,
an individual; RICHARD D.
OLDERBAK, an individual;
RICHARD MANN, an individual;
ROBERT L. BARR, an individual;
ROBERT SINGLETARY, an
individual; ROBERT WHITAKER, an
individual; ROBERT J. CAUTHRON,
an individual; RONALD A. WHITE,
an individual; RONALD G.
FRANKLIN, an individual; SANDRA
D. RINEHART, an individual; SCOTT
BOUGHTON, an individual; SETH
BRANHAM, an individual; SHERRY
A. TODD, an individual; STEPHANIE
JACKSON, an individual; STEPHEN
KRISE, an individual; STEPHEN P.
FRIOT, an individual; SUSAN C.
STALLINGS, an individual; SUSAN
K. NOLAND, an individual; SUSAN
KRUG, an individual; SUSIE
PRITCHETT, an individual;
TERENCE C. KERN, an individual;
THEODORE PEEPER, an individual;
THOMAS L. TUCKER, an individual;
THOMAS W. GRUBER, an
individual; TIM LEONARD, an
individual; TOM BALES, an
individual; TOMMY HUMPHRIES, an
individual; TREVOR HAMMONS, an
individual; TRICIA L. EVEREST, an
individual; VICKI MILESLAGRANGE, an individual; W. A.
EDMONDSON, an individual;
WALTER JENNY, an individual;
WAYNE JOHNSON, an individual;
WHITNEY WEINGARTNER, an

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individual; WILLIAM L. HUMES, an

individual; WILLIAM R. HOLMES,
an individual; DENNIS BANTHER, an
individual; CATHY STOCKER, an
individual; MARK A. MOORE, an
individual; MONTI I. BELOT, a.k.a.
The Bee, an Individual; A. JOE
FISH, an individual; DAVID HAWK,
an individual; BARRY REILLY, an
individual; ELDON DICKSON, an
individual; SUSAN O. WILLIAMS, an
individual; ANTHONY FELDER, an
individual; DALE CHOATE, an
individual; WANDA COLLIER, and
JOHN DOE COLLIER, a married
couple; REVA JEANNE LUBER, and
JOHN LUBER, a married couple;
BRAD THRASH, an individual; JOHN
DOE number three, an individual;
JOHN DOE number four, an
individual; BEATRIX BARR, wife of
Robert L. Barr,
Defendants-Appellees.

ORDER AND JUDGMENT *

Before TACHA, PORFILIO, and ANDERSON, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Naomi A. Stinson appeals pro se the district courts dismissal of her action
under Fed. R. Civ. P. 12(b)(6). Exercising jurisdiction under 28 U.S.C. 1291,
we affirm.
Ms. Stinson filed an amended complaint against 123 defendants, purporting
to allege causes of action under the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. 1964(c), and 42 U.S.C. 1983. She
alleged in her amended complaint that all of the defendants were members of a
syndicate of organized crime. She further stated that:
[a]fter picking a convenient target, [David] Russell and the
others will surreptitiously contact the target, then knowingly utter
false evidence of indebtedness to the target with the intent to deceive
the person and extort money and property from them. Documents
used by Russell and co-conspirators are purported by Russell and
Russells co-conspirators to be genuine but are not because they have
been falsely made or manufactured in their entirety.
R., Doc. 6 at 6. Ms. Stinson thereafter asserted that defendant Russell, on
specified dates, uttered false documents constituting manufactured evidence of
indebtedness through the United States mail. She also accused defendants Robert
Barr, E. Edd Pritchett, Susie Pritchett, Bryan Slabotsky, Douglas Jackson, and
Ronald Franklin of aiding and abetting Russells scam. Id. at 7. 1

Although there is no reference in her amended complaint to previous

litigation, the district court surmised that Ms. Stinsons claims appear to relate to
an action brought by the United States against Ms. Stinson, her husband, and their
children, to recover a judgment for unpaid taxes and foreclosure tax liens. In that
prior case, Judge David Russell, United States District Judge for the Western
(continued...)
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Numerous defendants filed motions to dismiss Ms. Stinsons amended

complaint, raising various theories. In its dismissal order, the court construed her
amended complaint as attempting to raise RICO claims based on fraud. It noted
that, other than in the case caption, plaintiff mentioned only a handful of the
named defendants in her amended complaint, and she failed to specify how any
defendant was involved in a racketeering enterprise. The court concluded that
Ms. Stinson did not allege her fraud-based RICO claims with particularity, as
required by Fed. R. Civ. P. 9(b). Therefore the court dismissed all claims against
all defendants with prejudice under Rule 12(b)(6). 2 The court declined to allow
Ms. Stinson another opportunity to amend her complaint, noting that her
complaint was vague, conclusory, and utterly incomprehensible, and that [h]er
later filings do not serve to clarify, but instead only allowed her to add
additional defendants and make further spurious claims without any factual
averments to support an implication of criminal wrongdoing. R., Doc. 88 at 7.

(...continued)
District of Oklahoma and one of the defendants in this case, entered judgment in
favor of the United States. Land belonging to the Stinsons was subsequently sold.
When Mr. Stinson failed to vacate that property, state-court criminal proceedings
were brought against him. Many of the defendants in this action were involved in
the prior court proceedings involving the Stinsons. See R., Doc. 73 at 1-2.
2

Citing an additional basis for dismissal of Ms. Stinsons claims against

some of the defendants, the court concluded that the allegations against the
numerous judicial and prosecutorial defendants related to their exercise of official
responsibilities, and therefore those defendants were entitled to absolute
immunity.
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We review de novo a district courts decision on a Rule 12(b)(6) motion

for dismissal for failure to state a claim. Alvarado v. KOB-TV, L.L.C., 493 F.3d
1210, 1215 (10th Cir. 2007). In doing so, we accept as true all well-pleaded
allegations of the complaint and construe them in the light most favorable to the
plaintiff. See id. We look to the specific allegations in the complaint to
determine whether they plausibly support a legal claim for relief. Id. at 1215
n.2. For [a] fraud claim, the pleading standard is higher: In all averments of
fraud or mistake, the circumstances constituting fraud or mistake shall be stated
with particularity. Pace v. Swerdlow, 519 F.3d 1067, 1073 n.5 (10th Cir. 2008)
(quoting Fed. R. Civ. P. 9(b)). We liberally construed Ms. Stinsons pro se
pleadings. See Price v. Philpot, 420 F.3d 1158, 1162 (10th Cir. 2005).
Ms. Stinson raises several claims of error on appeal. First she asserts that
the district court erred in dismissing her husbands complaint for false arrest and
false imprisonment. Her second contention is that the district court misapplied
the Federal Rules of Civil Procedure in dismissing her RICO claim. She argues
that she was only required to include in her amended complaint a short and plain
statement of her claim and why she was entitled to relief. Alternatively, she
argues that the court should have applied the summary judgment standard because

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the defendants failed to rebut her sworn testimony. Finally, Ms. Stinson contends
that the district court should have afforded her an opportunity to replead. 3
Plaintiffs first contention is without merit. The district court construed her
amended complaint to allege RICO fraud-based violations. 4 She points to nothing
in that pleading that would support a claim based upon her husbands alleged
false arrest or false imprisonment, nor do we find any such allegations in the
amended complaint. Ms. Stinson protests in her reply brief that her amended
complaint incorporated all of the allegations from her original complaint. But
even if an incorporation by reference in an amended complaint were sufficient to
carry through allegations included in an earlier pleading, we can identify no such
allegations in her original complaint.
Regarding the district courts dismissal of her RICO claims, Ms. Stinson
completely ignores the heightened pleading standard applicable to fraud claims
under Rule 9(b). Moreover, her contention that dismissal was improper because
none of the defendants rebutted her sworn testimony, Aplt. Opening Br. at 18,
3

Ms. Stinson does not challenge in her opening appeal brief the district
courts construction of her RICO claims, its holding that she failed to allege facts
with particularly in support of her fraud claims, or its holding regarding absolute
immunity as applicable to some of the defendants. As such, we deem those issues
waived. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (holding
omission of issue in opening brief generally forfeits appellate consideration of
that issue).
4

In an earlier order dismissing Ms. Stinsons claims against some of the

defendants, the district court also construed her claims under 42 U.S.C. 1983 as
resting upon her RICO fraud-based allegations. See R., Doc. 73 at 9.
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misconstrues the courts function on a Rule 12(b)(6) motion, which is not to

weigh potential evidence that the parties might present at trial, but to assess
whether the plaintiffs complaint alone is legally sufficient to state a claim for
which relief may be granted. Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir.
2006) (emphasis added). Thus, absent exceptions not applicable here, when
considering a Rule 12(b)(6) motion, a federal court may only consider facts
alleged within the complaint. County of Santa Fe v. Pub. Serv. Co. of N.M.,
311 F.3d 1031, 1035 (10th Cir. 2002).
Finally, Ms. Stinson appears to argue that, because she is pro se, the district
court should have granted her leave to file a second amended complaint. We
review a district courts denial of leave to amend a complaint for an abuse of
discretion. See Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d
1357, 1362-63 (10th Cir. 1989). Plaintiff fails to address any of the district
courts specific bases for denying her leave to amend. We note, as well, that the
district court dismissed her RICO claims against some of the defendants in June
2007, because they failed to satisfy the heightened pleading requirements of Rule
9(b). Despite receiving notice via that order that her amended complaint was
deficient, Ms. Stinson apparently chose to stand on that pleading until all her
claims were dismissed on the same basis more than a year later. See Sheldon v.
Vermonty, 269 F.3d 1202, 1207 n.5 (10th Cir. 2001) (holding dismissal with
prejudice appropriate where plaintiff had already filed previous amended
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pleadings that failed to cure the deficiencies in his claims). Ms. Stinson identifies
no basis for this court to conclude that the district court abused its discretion in
dismissing her amended complaint with prejudice.
We AFFIRM the district courts dismissal of plaintiffs claims under
Fed. R. Civ. P. 12(b)(6) on the bases stated in the district courts dismissal order
dated September 30, 2008. See R., Doc. 88. We DENY Ms. Stinsons motion to
proceed in forma pauperis on appeal and remind plaintiff that she is responsible
for the immediate payment of any unpaid balance of the appellate filing fee.

Entered for the Court

John C. Porfilio
Circuit Judge

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